The State Vs Dawood Jan

I

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

JUDICIAL DEPARTMENT.

Criminal Aooeal No.454-P20lE

JU DGMENT

Date of hearing 25o June, 2025

Appelhtrt By Mr. Kion Zeib, AAG.

(Strte)

Accwed-Respotrdent : BY Ir Person.

@awood Jan) * * * * * ** * * r. rr* tt * * rr rr * rr

s, M. ATTIOUE SHAH, AC.l,.state appellant herein, through instant appeal, has questioned the judgment / order dated 25.11.2017 passed by the leamed Additional Sessions Judge-II, Charsadda whereby, he acquitted the accused-respondent Dawood Jan under section 265-K, CrPC from the charges levelled against him in a criminal case vide FIR No.137 dated 21.01,2017 under Section 462'l PPC at Police Station WAPDA, Disrict Charsadda.

2.In short, facts of the case are that on 21.01.2017 , Mr. Qaiser Shah, SDO Urban Sub-Division reported the matter in written form that on the day of occurrence, he along with WAPDA and police officials were Present in the area for recovery of arrears, when, during the operation, the accused- respondent was found involved in direct connection from the LT line resulting in the registration of the ibid FIR. Pursuant thereto, the accused-respondent approached the court of competent jurisdiction for the grant of ad-interitn pre-arrest bail, which rvas earlier granted to him and later on confirmed

by the learned Sessions Judge, Charsadda vide order dated 3l.Ol.2Ol7. After formal proceedings, the accused-respondent was forwarded to the leamed Additional Sessions Judge-tr' Charsadda. However, the leamed trial court before framing the charge and perusing the case record in terms of section 265-D CrPC, acquitted the accused-respondent under section 265-K' CrPC while exercising such powers, vide judgement dated 25.l1.2}l7.Hence, the instant appeal filed by the State'

3.Heard. RecordPerused.

4.Before moving ahead, it would be worthwhile to reproduce herein below the provision ofsection 265-D Cr'PC for ease of reference:-

5,265-D. When charge is to be ftamed. If, afiet perusing the police report or, as the case may be, the complaint, and all othet documents and statements filed by the prosecution, the Coui't is of opinion that there is ground for proceeding with tle trial of the accu*d it shall frome in v)riting 4 charge against the ocatsed.

Section 265-K, CrPC also requires verbatim reproduction, which reads as under:-

265-K Power of Coua to acquit tccused al a"! slage. Nothing in this Chapter sholl be deemed to prevent a Court from acquitting dn accused ot any stage of the case; if afer hearing the prosecutor and the accused and for reasons to be recorded' it considers that there is no probability of the accused being corwicted of any offence'

5.In our criminal justice system' the provisions encapsulated under Chapter XXI-A of the Code of Criminal

Procedure, 1898 are mandatory in nature' This Chapter delineates the procedural framework that is required to be followed by the Courts in order to ensure a fair, just and impartial trial not only for the accused but also for the prosecution and the complainant. As such, compliance with the said provisions in their true letter and spirit is not merely desirable but obligatory. Amongst the various provisions contained in Chapter )O(I-A, Section 265-D assumes sigrificant importance. This provision casts a statutory duty upon the Trial Court to frame a charge against tlie accused' where appropriate. The charge constitutes a concise and precise formulation of the allegations levelled against an accused and it forms the foundation of a criminal trial' Section 265-D mandxes that before the charge is framed, the trial Court must, at a minimum, consider the following material placed before it by the prosecution:-

. the First Information Report (FIR);

. the police report under Section 173 Cr'PC; . all accomPanYing documents; and . the statements of the witnesses' The purpose of such scrutiny is to enable the Court to determine whether it has the jurisdiction to take cognizance of

the matter and whether prima facie reasonable grounds exist

for proceeding with the trial of the accused' Only when the Court is satisfied that it is competent to take cognizance and that the material on record discloses sufficient grounds to proceed, the charge should be framed' The object and purpose

of this procedural requirement is to initiate criminal proceedings judiciously and lawfully while ensuring that the accused is made aware of the specific nature of the allegations and the offences attributed to him. This knowledge is a fundamental right of the accused enabling him to effectively defend himself and to avoid any element of prejudice or miscarriage of justice. On the other hand, if, upon a comprehensive consideration of all the material available on record, the Court arrives at the conclusion that it either lacks jurisdiction or that no sufficient grounds exist for proceeding with the trial, it is incumbent upon the Court to abstain from framing a charge. Proceeding otherwise would amount to a futile, vexatious or purposeless prosecution and would constitute an abuse of the process of law and the judicial

system.

The Code of Criminal Procedure confers inherent jurisdiction upon the Trial Courts under Sections 249-A arld 265-K, u the case may be, to acquit any or all accused persons at any stage ofthe judicial proceedings subject to the recording of reasons and after affording an opportunity of hearing to all concemed parties. The expression 'at any stage' as employed in both provisions is of broad amplitude and includes the stages prior to or subsequent to the framing of charge or even after the recording of partial evidence during the course of trial. This inherent power may be exercised by the Court in circumstances where:-

the material on record is insufficient to establish the ingredients of any cognizable offence;

. although a charge is framed, it appears to the Court to be groundless or frivolous and continuation of the prosecution would result in an abuse of the process of law; or

. upon an overall assessment of the case, there exists no realistic probability of the corwiction of the accused even afier afull'fledged trial.

Accordingly, if such circumstances exist wananting the exercise ofpowers under Sections 249-Aot 265-K Cr.PC, the Trial Court is duty-bound to invoke these provisions provided that the parties are granted a fair opportunity ofhearing prior to the passing of any such order. The object and purpose of conferring such powers upon the Courts are manifold:- . to prevent abuse of the process of the Court; . to safeguard the sanclity and integrity of the criminal j us t ic e sYstem ;

, to prolect an accused person from lhe trauma artd hwassment of a maliciolts, vexatious or baseless Prosecution; and

. to secure the ends ofiustice.

The exercise of such inherent power' though discretionary in form, is mandatory in effect wherever the factual and legal circumstances justiff its invocifion' Any failure on the part of the Court to exercise this power in an appropriate case would constitute a violation of the substantive provisions of law and would prejudice the rights of

the accuse, rendering the continuation of proceedings illegal and contrary to the principles of criminal dispensation of justice. However, the exercise of this power requires to be undertaken with utnost caution and upon a careful and judicious application of mind to the peculiar facts and circumstances of a case.

6.Adverting to the merits of the case. No doubt, the complainant / SDO, through his report, has alleged that the accused-respondent was involved in the unauthorized and direct connection with the LT electricity line. However, a perusal of the said report reveals that it does not disclose any specific location, address or identifiable premises where the alleged illegal connection was established. Furthermore, there is no material on record to substantiate that the premises in question, if any, was owned, possessed or under the control of the accused-respondent at the relevant time. In the absence of such essential particulars, the allegation remains vague and uncorroborated thereby failing to establish a prima facie nexus between the accused-respondent and the alleged offence' Moreover, it is noteworthy that no private or independent witness was associated with the alleged proceedings including the purported recovery of five yards of electic wire from the

spot. The entire operation appears to have been' conducted solely in the presence of offrcial witnesses thereby casting serious doubt on the transparency and credibility of the proceedings. This concern is furdrer compounded by the fact

that the record is completely silent as to whether any prior permission and authorization was obtained from the competent authority for conducting such an operation purportedly aimed at recovering arrears or detecting unauthorized usage. This procedural lapse becomes even more sigrrificant in light of the fact that the source of information which allegedly implicated the accused-respondent in the unauthorized connection as well as the alleged loss caused to the public exchequer has not been disclosed and remains shrouded in mystery. In the absence of such foundational details and procedural safeguardg, the entire proceedings appear to suffer from serious legal infirmities thereby undermining their evidentiary value and raising a legitimate apprehension of mala fide or arbitrary action' All the aforesaid factors were duly and properly appreciated by the leamed Trial Court in their true legal and factual perspective culminating in the acquittal of the accused- respondent under Section 265-K CIPC through a well- reasoned judgment dated 25.11.2017. The said judgment' in the circumstances, is both legally sound and factually justified inasmuch as the material produced by the prosecution was wholly insufficient to establish the guilt of the accused- respondent. The Trial Court rightly concluded that even if the statements of the prosecution witnesses had been recorded, no reasonable probability existed of securing a conviction, given the lack of cogent evidence linking the accused-respondent to the alleged offence. The invocation ofsection 265-K Cr'PC in such a case was, therefore, not only appropriate but also

necessary to prevent abuse of the process oflaw and to uphold the ends of justice in the given circumstances' Upon being confronted with the aforementioned factual and legal position, the leamed AAG was unable to controvert or dislodge the same by any cogent argument or reference to the record'

Viewed in this legal and factual backdrop, this Court is of the considered opinion that the impugned judgment of acquittal

canno! by any stretch of reasoning, be termed as arbitrary' capricious or p€rverse so as to warrant interference in the

exercise of appellate jurisdiction' It is a settled principle of

criminal jurisprudence that if, upon evaluation and examination of the material on record, the Court entertains even a single reasonable doubt as to the guilt of the accused'

thereby such doubt must be resolved in favour of the accused entitling him to acquittal.

7 Accordingly, this appeal being without any merit and substance is dismissed'

Announced

25.06.2025 ACTING CIIIEF JUSTICE

@aysnngrtl $'D Justicz S M Afroue Shoh' IIACJ