Muhammad Khaliq Vs The State etc.

Stereo. HC JD A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Revision No.53163 of 2025 Muhammad Khaliq. v. The State, etc.

JUDGMENT

Date of hearing: 07.10.2025

Petitioner by: Mr. Imran Arif Ranjha, Advocate State by: Syed Farhad Ali Shah, Prosecutor General Punjab Respondent by: Mian Murid Hussain, Advocate

MUHAMMAD JAWAD ZAFAR, J.:- Through this petition, filed under Section 435 read with Section 439 of the Code of Criminal Procedure 1898 (“Code” or “Cr.P.C”), Muhammad Khaliq (“petitioner”) has impugned the order dated 23.01.2025 (“impugned order”) passed by learned Additional Sessions Judge, Sialkot (“Trial Court”), whereby the learned trial court had “sine die” adjourned the trial arising out of crime report bearing FIR No. 130 of 2024, dated 09.03.2024, for offences under Sections 302, 34, 109 of the Pakistan Penal Code 1860 (“PPC”), registered with Police Station Kotli Said Amir, Sialkot (“crime report” or “FIR”),1 by accepting the application moved by complainant of the crime report, namely, Liaqat Ali (“respondent No. 2”).

2.Succinctly, after the completion of investigating in the crime report, the investigating agency submitted challan/police report under Section 173 of the Code, through the office of the District Public Prosecutor in consonance with Section 9(5) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006 (“Act of 2006”), in the learned trial court. On receipt of the challan, the learned trial court took cognizance of offences in the crime report and issued process. Subsequent thereto, after providing necessary copies in terms of Section 265-C of the Code, the case was fixed for Note that initially the crime report got lodged for offence under Section 324 of the PPC, however, the said offence was deleted and substituted with offence under Section 302 of the PPC vide Zimni No. 3 dated 11.03.2025.

(Muhammad Khaliq v. The State, etc.)

indictment of the accused person(s) by the learned trial court and formal charge, in terms of Section 265-D of the Code, was framed against accused Rafaqat Ali and present petitioner Muhammad Khaliq vide order dated 28.06.2024, to which they pleaded not guilty in terms of Section 265-E of the Code and claimed trial. Based thereon, the case was fixed for the production of prosecution evidence in terms of Section 265-F of the Code. Since the fixation of the case for production evidence, no prosecution witness deposed before the learned trial court and eventually an application was moved by respondent No. 2 before the learned trial court for “sine die” adjournment of the case till such time that the proclaimed offender Khalid, son of Muhammad Siddique, will be apprehended. Said application was accepted by the learned trial court vide the impugned order, hence, this criminal revision petition.

3.Heard. Record perused.

4.In order to appreciate the contention of the learned counsel for the petitioner and address the legal conundrum involved herein, it would be advantageous to first appreciate the connotation of the terminology “sine die”. The Latin term has not been defined in the Code, and in such like situations, recourse can be made to its ordinary dictionary meaning.2 According to Black’s Law Dictionary (10th edition), the term means ‘without day - with no day being assigned - to end a deliberative assembly's or court's session without setting a time to reconvene’. With the definition taken into consideration, this Court is of the opinion that the application of the respondent, in terms of Section 344 of the Code, seeking “sine die” adjournment was misconceived. Reason being that the legislature has expressly deployed the expression ‘from time to time’, therefore, the provision does not enable the learned Trial Court to adjourn the case for an indefinite duration without fixing the next date of hearing.3 5. Likewise, the reliance of the learned trial court on the See “Government of the Punjab v. Abdur Rehman” (2022 SCMR 25); and, “Chairman, Pakistan Railway, Government of Pakistan, Islamabad v. Shah Jahan Shah” (PLD 2016 Supreme Court See “Nadeem Sultan v. Hamza Shamim” (PLD 2023 Lahore 334); “The State v. Shahzad Riaz” (2021 PCr.LJ 656 Sindh); “Abdul Rauf Gujjar v. Judge ATC-III, Lahore” (2020 PCr.LJ 1259 Lahore); “Bakhtiar Khan v. The State” (2018 MLD 72 Peshawar); “Barkat Hayat v. The State” (2017 PCr.LJ 167 Peshawar); and, “Muhammad Amin v. Momin Khan” (PLD 2014 Peshawar 49).

(Muhammad Khaliq v. The State, etc.)

provision of Section 249 of the Code to “sine die” adjourn the case before it is misconceived. It follows that under Article 175 of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”), courts can only exercise jurisdiction vested in them either by the Constitution or the law made thereunder.4 The power to stop proceedings under Section 249 of the Code, with the previous sanction of the learned Sessions Judge, and discharging the accused person or persons without passing any order of conviction or acquittal in terms of Section 245 of the Code, is only vested with the learned Magistrate in a magisterial trial, which trials are to be conducted in terms of the provisions contained in Chapter XX (Of the trial of... cases by Magistrate) of the Code. Conversely, trials before the learned Court of Sessions are governed by Chapter XXII- A (Trials before High Courts and Courts of Sessions) of the Code, which chapter starts from Section 265-A of the Code and ends at Section 265-N of the Code. Minute scrutiny of Chapter XXII-A of the Code makes it abundantly obvious that no provision akin to that of Section 249 of the Code exists which may be exercised by the learned Court of Sessions in a sessions trial. To this end, it is trite that the omission in a statute, as a general rule, cannot be supplied by construction because a court is not entitled to read words into an act which the legislature has omitted.5 Had the legislative intent been that the power under Section 249 of the Code could also be exercised by the learned Court of Sessions, a similar provision would have been inserted in Chapter XXII-A of the Code. Due to said non-insertion of a provision akin to Section 249 of the Code in Chapter XXII-A of the Code, it is, therefore, held that the learned Court of Sessions cannot “sine die” adjourn any matter and has to comply with the provision of Section 344 of the Code by issuing the next date of hearing.6 6. In addition thereto, it hardly needs reiteration that the learned trial court is empowered under Section 512 of the Code to take evidence in the absence of an accused, who has absconded, after satisfying itself that the provisions of Section 87 and Section 88 of See “Rafi Ahmad v. Province of Punjab” (2021 PLC (C.S.) 1283 Lahore).

See “Sadullah v. The State” (PLD 2018 Balochistan 39).

See “Nadeem Sultan v. Hamza Shamim” (PLD 2023 Lahore 334).

(Muhammad Khaliq v. The State, etc.)

the Code were complied with in letter and spirit. Section 512(1) of the Code provides that if an accused has absconded and the immediate prospect of his arrest is non-existent, the court competent to try such an absconder may, in his absence, examine witnesses (if any) produced by the prosecution and record their depositions. 7 The object of this enabling provision is to preserve the available evidence so it may not be lost or destroyed by the time of arrest of the absconding accused. Imperative to observe at this junction that the depositions of the prosecution witnesses fall within the confines of “evidence” as defined under Article 2(c) of QSO, as well as “judicial proceedings” as mentioned in sub-section (m) of Section 4 of the Code. Therefore, they would attract the provisions of Articles 46 and 47 of the Qanun-e-Shahadat Order 1984 (“QSO”). As a consequence thereof, combined reading of Section 512 of the Code along with Article 46 and Article 47 of the QSO makes it crystal clear that before making such evidence admissible, two foremost and essential conditions are to be satisfied, as follows:

a. The court must satisfy itself that the accused has absconded and there is no imminent apprehension of his arrest; and, b. Statements made by witnesses in question, on the arrest of an absconder, may be used as evidence against him, provided that witnesses whose depositions were recorded are either dead at the time of arrest of the accused or incapable of giving evidence or attendance of such witness cannot be procured without an amount of delay, expenses or inconvenience of an unreasonable nature.

The purpose of provisions of Section 512 of the Code is to bring on record evidence relating to absconders in order to avoid causing prejudice to non-absconding accused8 and to preserve the evidence of witnesses against such absconding accused so that it may not be destroyed or caused to disappear due to the death of a witness(s); their physical infirmity to depose; or, their non- availability. In such circumstances, the learned trial court is required to exercise proper judicial care and caution while conducting such See “Muhammad Ramzan v. Rahib” (PLD 2010 Supreme Court 585).

See “Nabi Ahmad v. Home Secretary, Government of West Pakistan” (PLD 1969 Lahore 966).

(Muhammad Khaliq v. The State, etc.)

proceedings at both stages, one under Section 512 of the Code and the other when such evidence is required to be used against the accused at a separate/subsequent trial on his arrest. In both the occasions, the court must comply with the mandatory requirements of the above provision of law and its judicial satisfaction on both the occasions must rest and be surely based on cogent evidence recorded therein because any action or order taken or made in vacuum or short of the prescribed standard would make the evidence so recorded of no legal worth to be used against such an accused person.9

7.In view thereof, the contention of the learned counsel for the petitioner that the statement of prosecution witnesses ought to be recorded in the presence of the accused on his arrest so that the case of the prosecution or that of said absconding accused is not prejudiced is without force because Section 353 of the Code is to be read in conjuction with Section 512 of the Code and Article 46 and 47 of the QSO,10 and as elucidated hereinabove, evidence can be recorded in the absence of an absconding accused, which recorded evidence can later on be transposed in the subsequent trial, provided the conditions laid down are met.11 The only caveat is that no order of conviction, in terms of Section 265-H of the Code, can be passed against said absconding accused in his absence,12 least the same will tantamount to contravention of the cardinal rights of the absconding accused in terms of Articles 2-A, 4, 8, 9, 10(1), 10-A and 25 of the Constitution, as well as the injunctions of Islam.

8.Considering that there is no embargo on recording of evidence in the absence of an accused and that the learned Court of Sessions is not empowered to “sine die” adjourn any case pending adjudication before it, this Court finds that the impugned order is perverse and See “Ali Raza v. Fazal Wahid” (PLD 2004 Peshawar 20).

See “Muhammad Anwar v. The State” (2023 PCr.LJ 285 Balochistan).

See “Nazak v. The State” (2018 PCr.LJ 889 Peshawar (dB)); and, “Sohail v. The State” (PLD 2014 Peshawar 189).

See “Muhammad Saddique v. The State” (2018 SCMR 71); “Nazar Muhammad v. The State” (2011 SCMR 1487); “Arbab Khan v. The State” (2010 SCMR 755); “M.B. Abbasi v. The State” (2009 SCMR 808); “Muhammad Arif v. The State” (2008 SCMR 829); “Ikhlaq Ahmad v. The State” (2008 SCMR 951); “Mehram Ali v. Federation of Pakistan” (PLD 1998 Supreme Court 1445 (5- MB) = 1998 SCMR 1156 (5-MB)); and, “Zia Ullah Khan v. Government of Punjab” (PLD 1989 Lahore 554), upheld by the honourable Supreme Court of Pakistan in “Government of Punjab v. Zia Ullah Khan” (1992 SCMR 602).

(Muhammad Khaliq v. The State, etc.)

patently illegal, thereby amounting to illegal exercise of jurisdiction, as such, it necessitates interference by this Court in its revisional jurisdiction.13 In view thereof, this petition is hereby accepted, the impugned order dated 23.01.2025 passed by the learned trial Court is set aside and the learned trial court is directed to record the evidence of prosecution witnesses and proceed with the trial arising out of the crime report strictly in accordance with the law.

(MUHAMMAD JAWAD ZAFAR)

JUDGE

Approved for Reporting.

JUDGE

Ejaz/*

See “Imamuddin v. The State” (2022 YLR 963 Sindh).