State vs Muhamamd Shahid @ Shada

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Crl. Appeal No.1026/2016 (The State vs. Muhammad Shahid alias Shada)

JUDGMENT

Date of hearing: 01.06.2022 State/Appellant by: Mr. Muhammad Ali Shohab, Deputy Prosecutor General.

Respondent by: Malik Ghulam Abbas Pounta, Advocate.

ALI ZIA BAJWA, J.:- Through the instant appeal, filed under section 417 Cr.P.C, the State has assailed the vires of impugned order dated 18.02.2016 (hereinafter “impugned order”) passed by learned Additional Sessions Judge, Shujabad (hereinafter “trial court”). Muhammad Shahid alias Shada son of Muhammad Ramzan, caste Darkhan, resident of Mouza Khara, Jalalpur Road Shujabad, District Multan (hereinafter the respondent) was booked in case FIR No.219/2015, dated 10.09.2015, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered with police station Saddar Shujabad. During the pendency of the trial, the learned trial court while exercising jurisdiction under section 265-K Cr.P.C, acquitted the respondent of the charge.

2.Arguments heard, record perused.

3.Perusal of the record available on the file reveals that the respondent was booked in the aforementioned case with the allegation that on 10.09.2015, he was apprehended by Talib Hussain SI/complainant and other police officials and at that time he was found in possession of contraband charas weighing 2630 grams. After completion of the investigation, a report under section 173 Cr.P.C. was prepared and sent to the learned trial court. Vide order dated 18.12.2015, the respondent was indicted to which he pleaded not guilty and claimed trial. Thereafter, prosecution evidence was summoned. On 21.01.2016, Muhammad Asif 1655/C, PW was present, however, on account of the non-appearance of the remaining prosecution witnesses, his statement could not be recorded and the case was adjourned for 04.02.2016 but on that date learned Presiding Officer was on leave. Case was further fixed for hearing on 18.02.2016 and on that date, all at once, without recording the prosecution evidence, the learned trial court while exercising its power under section 265-K Cr.P.C. acquitted the respondent.

4.Before dilating upon the merits of the case, it would be beneficial to briefly discuss 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. have been reproduced hereinafter:- “204. Issue of process.-- (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, [it] shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that

column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [Court] or if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such [Court] if as if it has no jurisdiction itself some other Court having jurisdiction.”

“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.”

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.1 Furthermore, 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.

5.In the present case the respondent was not only summoned to stand the trial, but the charge was also framed against him. It clearly shows that the learned trial court was of the view that there is sufficient ground available against the accused to proceed with the trial and the prima facie case is made out against him after considering the entire material and documents produced by the prosecution. During trial proceedings, none of the witnesses, including the complainant and Investigating Officer, was recorded despite the fact that Muhammad Asif 1655/C was present before the NOOR MUHAMMAD vs. THE STATE – PLD 2007 SC 9

court on 21.01.2016. In Farman Ali,2 it was observed that after taking cognizance and framing of charge, the proper course would have been to record the statement of at least the main prosecution witnesses before disposal of any application under section 265-K Cr.P.C.

6.The learned trial court examined and considered the evidentiary value of documents i.e. complaint, recovery memo prepared by the complainant and site plan prepared by the Investigating Officer, which were not even tendered in the evidence by the prosecution at that time. Prosecution witnesses were not confronted with the defects in the aforementioned documents. Without exhibiting a document during the recording of evidence, the same cannot be considered to decide the fate of a trial. We see eye-to- eye with the argument of the learned Deputy Prosecutor General that the prosecution was not provided a fair opportunity to prove its case which is a flagrant violation of the right to fair trial as ensured under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The learned trial court didn”t provide an opportunity to prosecution witnesses to be confronted with aforementioned documents and any flaws therein, rather on its own, opined that the handwritings on the complaint, recovery memo and site plan were of the same person. It is pertinent to mention that those documents were not even tendered in evidence and got exhibited by the prosecution. Thus, the findings given by the learned trial court while exercising its power under section 265-K Cr.P.C. that false and fabricated documents were prepared by the prosecution witnesses, are in derogation of the principle of natural justice “audi alteram partem” i.e. nobody should be condemned unheard. It will not be out of place Farman Ali v. Tandi Bakht and 3 others, (2008 M L D 1690) (Karachi High Court)

to have a look at section 265-K Cr.P.C. which has been provided as infra:-

“265-K. Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after nearing the prosecutor and the accused and for reasons to be recorded, it considers that there is not probability of the accused being convicted of any offence.”

7.It is a settled law that prosecution should not be stifled in its very inception while exercising power under section 265-K Cr.P.C. by the learned trial court. The documents referred by the learned trial court were yet to be tendered in evidence by the prosecution and then their evidentiary value was to be determined. In Nawaizish Ali3 it was observed that where a prima facie case is made out against the accused, he should not be acquitted under section 265-K Cr.P.C. which amounts to stifle the prosecution at its very inception. Relevant extract of the judgment has been reproduced hereinafter:- “6...In view of the available evidence prima facie case is made out against the said respondents. The object of exercise of powers is to prevent abuse of law available to the learned appellate Court however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice. Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. The prosecution evidence is not to be sifted at the outset...”

The same view was taken by the Hon”ble Federal Shariat Court in Mst. Kalsoom4, while elaborating the scope of section 265-K Cr.P.C, it was ruled that without providing a proper opportunity to the prosecution to prove its case, the accused should not be acquitted. The relevant extract of the judgment has been reproduced as infra:- Nawaizish Ali and another vs. The State and others - 2010 SCMR 1785 Mst. Kalsoom vs. Bashir Ahmed and 2 others - 2000 PCrLJ 1054

However, in order to prevent abuse of the process of the Court and secure the ends of justice, it has been emphasized over and again by all the superior Courts that the discretionary powers under this section are to be exercised sparingly and judiciously, and in no way arbitrarily and capriciously. It may not be, therefore; fair for the Court to pass order of acquittal without providing proper and full opportunity to the parties concerned to produce evidence. The Court is undoubtedly empowered- to acquit the accused at any stage, as mentioned hereinabove, but it should do so only when, after hearing both prosecution and accused, it comes on the basis of adequate reasons to the definite conclusion that there is no possibility of accused being convicted of any offence. In any case the prosecution is not to be stifled at the outset.

8.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. 5 Provisions 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 Hashim vs. Gul Muhammad and 2 others - 2009 P.Cr.LJ 36 (Federal Shariat Court)

prosecution and defense to prove their case. It was ruled in Mst. Azra Tabassum6as under: -

“it is also well settled by now that section 249-A and section 265-K of the Cr.P.C. are an exception to the general rule. These provisions being of utmost importance have to be construed very strictly. Depriving a complainant to prove his case through the evidence collected during the investigation without strong and exceptional reasons is not a proper and fair exercise of jurisdiction...”

It was observed by prestigious Supreme Court of Pakistan in The State v. Raja Abdul Rehman - 2005 SCMR 1544 that in routine criminal cases should be decided on merits after recording of evidence and sections 265-K or 249-A Cr.P.C. should not be pressed into service to acquit an accused. Relevant portion of the judgment has been reproduced as infra:-

“... usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C. recording of statement of accused under section 340(2), Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K, and section 561-A, of the Cr.P.C. should not normally be pressed into action for decision of fate of a criminal case."

9.In the instant case, after the recovery of contraband charas from the respondent, the investigation was conducted, and he was sent to stand trial. The respondent was summoned by the trial court and a formal charge was framed against him. Keeping in view the provisions of sections 204 and 265-D, the learned trial court was of the view that there is a prima facie case made out against the respondent. Thereafter, the acquittal of the respondent under the garb of section 265-K Cr.P.C., without recording any evidence and without Mst. Azra Tabassum vs. The State - 2011 YLR 628 (DB Lahore High Court)

confronting the documents to the prosecution witnesses, is totally uncalled for and unwarranted. This Court would preclude itself from rendering any findings regarding the merits of the case, which may prejudice the case of either party at the trial stage, however, keeping in view the material available on the record and other attending circumstances, impugned order dated 18.02.2016, passed by learned Additional Sessions Judge, Shujabad, has been found by us untenable in the eye of the law, which is accordingly set-aside. Crl. Appeal No.1026/2016 is allowed and the case is remanded back to the learned trial court to proceed with the matter strictly in accordance with law while affording a fair opportunity to the prosecution to prove its case. It goes without saying that the respondent shall also be afforded a proper chance to prove his innocence.

10.Before parting with the judgment, it is clarified that the trial of the case in hand shall be deemed pending before the learned trial court and during this period, the respondent shall be treated as under trial prisoner on bail subject to his furnishing surety bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court.

11.Case remanded.

(ASJAD JAVAID GHURAL) (ALI ZIA BAJWA)

JUDGE JUDGE

Approved for Reporting

JUDGE JUDGE

Riaz