State through AG KP Vs Sa,iullah etc

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v

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) Cr.A No. -A12023

State through Advocate-General, Khyber Pakhtunkhwa, Pes haw ar.

(Appellant)

VS

Samiullah and another.

(Respondents)

Present: Sardar Waqar-ul-Mulk, AAG, for the appellant (State).

Mrs. Sehrtsh Habib, Advocate, for the acquitted respondent.

Date of hearing: 19.09 .2023

JUDGMENT

MUHAMMAD IJAZ KHAN" J.- The appellant (State) has filed the instant appeal under section 417 ofthe Criminal Procedure Code 1898 and has challenged the order of Judge Special Court/Havelian at Abbottabad dated 18.05.2022 whereby the accused/person has been acquitted of ,t/ the charges levelled against him in case FIR No' 296 datedO5.O8.2O21 under section 11 (b) of The Tuhir Saleem (D.8.) Hon'ble Mr. Justice Kammn Hoyat Mimkhel Hon'ble Mr. Justice Muhammad ljaz Khan

Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 at police station Lora.

) Precisely, the facts of the case are that accused/respondent was apprehended by the local police and on his personal search 193 grams of ice was recovered from his side pocket, thereafter, the investigation was carried out and ultimately challan was submitted under section 173 Cr.P.C before the Judge Special Court, however the learned Judge Special Court, Abbottabad at Havelian without even framing of charge, acquitted the accused/respondent vide order dated 18.05.2022 which order has now been challenged by the State through the instant appeal.

3 When this appeal was taken, it was admitted and the notices were issued to acquitted accused/respondent, who put his appearance and today arguments of learned AAG as well as of the .(ry learned counsel for acquitted respondent/ accused were heard in considerable detail and the record perused with their able assistance Tuhir Saleem (D,8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad liaz Khan

4 The admitted fact of this case is highly alarming as when the challan was put in court under section 173 Cr.P.C where the IO has opined that a prima facie case exists against accused as as per the final challan report after recovery of the contraband, samples were separated from the recovered substance and were sent to the FSL and the report thereof to this regard is also positive and all the PWs who were witnesses of the recovery as well as of the transportation of the contraband/samples from spot to the police station and from the police station to the FSL have recorded their statements under section 161 Cr.P.C, who have fully supported the case of prosecution, however, when such materials were placed before the learned Judge Special Court, Abbottabad who without following the procedure AS provided under a

V Chapter XXII-A of Cr.PC straightaway acquitted the accused/respondent through the impugned order. The grounds so recoded by the learned trial court may be very good grounds for the grant of Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad liaz Khan

bail but such grounds could neither be taken nor considered for acquittal of an accused as all these facts have to be explained by the concerned prosecution witnesses to whom an opportunity for appearance in the written box has not been provided by the trial court, therefore, such acquittal order under the law could not be legally sustainable.

5.It is relevant to mention here that under Chapter XXII-A of Cr.P.C, a complete and comprehensive procedure has been provided for the trial of an accused person comprising of supply of statements and documents to accused (section 265-C Cr.P.C), framing of charge if material produced by the IO before the trial court are sufficient to proceed with the trial of the accused (section 265-D Cr.P.C) mode and manner in which charge has to be framed (section 265-E Cr.P.C) and then prosecution witness is to be & produced (section 265-F Cr.P.C) and after the completion of the prosecution evidence the statements of the accused has to be recorded Tahir Suleem (D.8.) Hon'ble Mn Justice Kamran Hayat Miankhel Hon'ble Mr. Juslice Muhammad liaz Khan

(section 342 Cr.P.C) and if the accused wishes to produce defense witnesses then such witnesses are to be examined. It is also relevant to mention here that after framing of charge an accused person could be acquitted by the trial court under section 265-K Cr.P.C, if it considers that there is no probability of the accused to be convicted, however, in the present case the learned trial court has acted in such an unnecessary haste that it has not even procured the attendance of accused what to speak of supply of documents to the accused or to frame the charge and has acquitted the accused/ respondent which procedure adopted by it is totally alien to the law. It is also relevant to mention here that as per mandate of section 265- D Cr.P.C the trial court has to apply its mind that whether the materials brought before it are suffrcient to proceed with the trial of accused or v that the materials would not be sufficient to connect the accused with the offence, however, in the present case the learned trial court has not properly exercised its jurisdiction as there were Tuhir Stleem (D.8.) Hotr'ble Mr. Justice Kamrun Hayat Miankhel Hon'ble Ml Justice Muhammad liaz Khan

sufficient materials before it to frame the charge and to proceed with the trial of the accused but instead it opted for a short-cut and passed the impugned order in violation of the aforesaid statutory provision there the same is not legally sustainable. In the case of "Muhammad Ashraf vs. The Slate" reported as PLD 2008 Lahore 578 it has been held that charge under the law had to be framed by the court on the basis of the material placed before it and in doing so, the court was not bound by the report submitted under 5.173, Cr.P.C and Court had to frame the charge under S.265-D, Cr.P.C. after perusing the police report or complaint and the material provided by the prosecution. Charge once framed, would not become rigid or irrevocable; it could be altered or changed under 5.227, Cr.P.C., if it was so warranted by the circumstances. Similarly, in the case of "United Bank Limited throueh Princiosl ? Officer/Attornev/Areq Manaser, Multan Zone.

Multan the stute und unother" reported as 2005 1891wherein it has been held that Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamran Hayal Miankhel Hon'ble Ml Justice Muhammad ljaz Khan

challan had been submitted against the accused after investigation, but trial court had acquitted him under S.265-K, Cr.P.C. without framing the charge on surTnlses and conjectures without considering that different witnesses had supported the prosecution story and the prosecution could not be knocked out in a slipshod manner without affording opportunity to lead the evidence to prove its case in the presence of other material available on record against the accused and set aside the order of acquittal and remanded the case back to the trial court for proceeding 1n accordance with law. Likewise, in case of "Mulramma' d Zufar Khan v^s.

Ashraf and er" reoorted as 2014 PCr. LJ lwherein it has been held that the trial court acquitted accused under S. 249-A, Cr.P.C. by q observing that complainant in his statement under -t/ S. 16l, Cr.P.C. stated that he gave name of accused by mistake, and that neither he had any proof against her nor he intended to proceed against her. The complainant had Tahfu Saleent (D.8.) Hon'ble Mr, Justice Kumran Hayat Miankhel Hon'ble Mn Justice Muhammad Iiaz Khan

disowned making any such exonerating statement in favour of accused under section 161 Cr.P.C, therefore, the proper course for trial court would have been to record the evidence of complainant and investigating officer, with an opportunity of cross-examination to the accused so as to ascertain the sanctity of complainant's statement under S. 16l, Cr.P.C and allowed the appeal against acquittal.

6 It is relevant to mention here that Criminal Justice System stands on three pillars i.e. investigation, prosecution & trial and for a result oriented dispensation of justice, all the three organs have to be kept in balance i.e. to say that a fair opportunity is to be provided to the IO to collect material with respect to prima facie connection of the nominated accused with the V offence or otherwise. Similarly, prosecution has also to be provided a reasonable opportunity to prove the truthfulness of those materials in the trial which were collected by the IO during the course of investigation, however, in the present Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad Ijaz Khan

case prosecution was not granted a fair chance to prove the charge against the nominated accused.

7 It is also relevant to mention here that in the recent past Article 10-A was inserted in The Constitution of Islamic Republic of Pakistan, 1973 which guarantees the due process of law to everyone whether he is an accused or complainant/prosecutor or plaintiff & defendant and thus after the insertion of the said Article, the due process of law, which also concludes a fair trial, has been recognized and acknowledged as one of the fundamental right of every person, therefore, such right could not be denied to anyone in any capacity, however, through the impugned order the same has been denied to the c omp I ainant/prosecutor AS they have been deprived of the prosecution of the accused. In the case "Muhammad Rasool v^s. The Stute" reported as 2022 SCMR 1145 the Hon'ble Apex Court has held that fair trial is not a one-way affair but it also requires an accused and his Tahb Suleem (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan

agents, pleading innocence, to conduct themselves in a manner above board, in accordance with law and their pursuit is only justified insofar as it is in accordance with the means sanctioned by law. Likewise, in the case of " Federution of Pukistan throush

Finunce, Islamabad and M

Movers (PVT.) LIMITED and another tt reported as 2022 S C M R 1021, wherein it has been held that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and any person who exercises authority must do so in accordance with law.

8.In view of the above discussion, this appeal is allowed and consequently the impugned order of the Judge Special Court/Havelian at

V

Abbottabad dated 18.05.2022 is set aside and the case is remanded back to the learned Judge Special Court/Havelian at Abbottabad, who shall Tahir Saleem (D.8.) Hon'ble Mr, Iustice Kamran Hayat Miankhel Hon'ble Mn Justice Muhammad liaz Khan

conduct the trial of the acquitted accused in the instant case in accordance with law.

Announced

JUDG

Tahir Saleem (D.8.) Hon'ble Mn Justice Kamrun Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan